Bills of Rights: How Different is the Commonwealth Alternative?

Recently introduced bills of rights in parliamentary jurisdictions such as Canada, New Zealand, the United Kingdom and Australia differ from the more court-centred approach associated with the American Bill of Rights in the following two respects. First, with the exception of Canada, judicial review is distinguished from judicial supremacy. While these parliamentary jurisdictions now recognize judicial rights review as a legitimate component of constitutionalism, they also formally acknowledge the legitimacy of political dissent from judicial rulings. Second, these bills of rights promote non-judicial rights-review, which is manifested in new procedures and incentives for the systematic review of proposed legislation prior to, and potentially independent of, judicial review. This paper focuses on this second point of difference: non-judicial rights review. This concept embraces the following ideas: i) rights protection does not rest primarily on judicial remedies to redress infringements that have already occurred, but is heavily dependent upon incentives and procedures to reduce the incident of rights abuses from actually occurring; and ii) political decisions to proceed with legislation are made only after having confronted their implications for protected rights. The above ideas represent a significantly different understanding of the function of a bill of rights than in more conventional approaches. They also have the potential to broaden the perspectives undertaken when making judgments about how rights appropriately guide and constrain state actions. This paper asks the following questions. How is political behaviour affected by the institutionalisation of new incentives and obligations for rights-based evaluations of legislative proposals? Do cabinet and parliament consciously reflect on the rights-dimension of proposed legislation and, if so, how does this affect political deliberation? Does political rights review contribute to the legalization of legislative decision-making? The jurisdictional focus will be on the United Kingdom, although the constraints and challenges arising there are relevant for other parliamentary jurisdictions with variations on this model. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]